93 Decision Citation: BVA 93-18010
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-09 522 ) DATE
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THE ISSUE
Entitlement to an increased evaluation for post-traumatic
stress disorder, currently evaluated as 70 percent
disabling, based on a total disability rating for
compensation based on individual unemployability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
B. Hoeft, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1968 to
March 1972.
This matter came before the Board of Veterans' Appeals (the
Board) on appeal from an October 1990 rating decision from
the Milwaukee, Wisconsin, Regional Office (RO) which denied
entitlement to an increased rating for post-traumatic stress
disorder (PTSD). A notice of disagreement was received in
September 1991. A statement of the case was issued in
October 1991. A substantive appeal was received in the same
month. In December 1991, a claim for increased compensation
based on unemployability was received. By a March 1992
rating decision, the RO denied the claim for a total
disability rating based on individual unemployability.
A supplemental statement of the case was issued in
April 1992. The case was received and docketed at the Board
in June 1992.
The veteran has been represented by the Disabled American
Veterans. The case was referred to that organization in
June 1992 and they entered additional argument in
October 1992.
REMAND
The veteran served in combat during the Vietnam era as a
helicopter pilot and was awarded the Purple Heart. By a
May 1986 rating decision, the RO granted service connection
for PTSD and assigned a 30 percent rating. The rating was
increased to 50 percent, and later to 70 percent, by
separate 1988 rating decisions. Although the veteran was
granted several temporary total disability ratings for
hospitalization and convalescent periods, the 70 percent
evaluation has been in effect since July 1988.
In examining the evidence of record, the Board notes a
number of inconsistencies between established facts and the
veteran's account of various circumstances and events.
Specific examples of these inconsistencies include claiming
to have been shot down in Laos and held in a bamboo cage for
68 days (November 1987 VA examination) when there is no
record that he was a POW (the Board notes that during a
December 1988 VA hospitalization he reported 57 days);
claiming to have had two tours in Vietnam, first as an
infantryman and second as a helicopter pilot (June 1989 VA
examination and December 1988 VA hospitalization) when only
one tour is reflected in the service personnel records as
well as other accounts such as the May 1992 report from a
consulting psychologist; and inconsistencies in the
education level, that is, reporting two years of college
(December 1991 claim for unemployability) as opposed to
having a bachelor's degree in business and being accepted
into law school (December 1988 VA hospitalization), or being
one year short of a master's degree in business
administration (November 1987 and June 1989 VA
examinations). These inconsistencies may reflect a thought
disorder which has not previously been identified or taken
into account by the examiners, and therefore may have
affected the examination. Moreover, the Board notes that in
December 1988 and June 1989, the veteran also was diagnosed
with a personality disorder. In order for examiners and VA
to properly evaluate the veteran, they need to know which
facts are true. As a result, the Board believes that an
investigation to verify the facts, including the stressors,
relived experiences and symptomatology, as well as an
additional psychiatric examination to clarify the diagnosis
are warranted.
VA has a duty to assist the veteran in the development of
facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West
1991); Littke v. Derwinski, 1 Vet.App. 90 (1990). This duty
extends to verifying facts, securing relevant records,
obtaining appropriate examinations and diagnoses, and
determining whether current symptomatology is related to
incidents in service.
Under the circumstances of this case, we are of the opinion
that additional assistance to the veteran is required.
Accordingly, the case is REMANDED to the RO for the
following:
1. The RO should obtain an update of any
outpatient or inpatient treatment records
from VA treatment facilities and the
veteran's private psychiatrist, Sheldon
A. Chicks, M.D., and private
psychologist, Lawrence E. Currie, Ph.D.,
since May 1992. These records should be
associated with the claims file.
2. The RO should review the file and
prepare a summary of all the claimed
stressors. This summary and all
associated documents should be sent to
the United States Army and Joint Services
Environmental Support Group (ESG),
Building 247, Stop 387, Fort Belvoir, VA
22060. See DVB Circular 21-86-10,
particularly, paragraph 4(d). They
should be requested to provide any
information which might corroborate the
veteran's alleged stressors.
3. The RO should also contact the
National Archives Records Administration
(NARA) U.S. Army Liaison, 9700 Page
Boulevard, St. Louis, Missouri, 63132,
and the NARA, DARP-PAS-EAW, also in St.
Louis in order to obtain all records
showing the accrued flight time, and all
pertinent information regarding the Air
Medal, Army Commendation Medal, and
Purple Heart awarded to the veteran. All
the information obtained should be
incorporated in the claims folder.
4. A social and industrial investigation
should be conducted. It should be
ascertained if the veteran is working.
Family members, former coworkers, members
of the community and the veteran should
be interviewed. The investigator should
comment on the veracity of the
witnesses. He should also express an
opinion with complete rationale as to
whether the veteran is unable to obtain
and maintain gainful employment as a
result of his service-connected PTSD.
The report of investigation should be
typewritten and associated with the
claims file.
5. Following the above, the veteran
should be examined by a panel of two VA
board-certified psychiatrists who have
not previously examined him to determine
the exact diagnosis, if any, of the
psychiatric disorder. Each psychiatrist
should conduct a separate examination
with consideration of the criteria for
post-traumatic stress disorder. The
examination report should include a
detailed account of all pathology found
to be present. If there are different
psychiatric disorders than post-traumatic
stress disorder, the board should
reconcile the diagnoses and should
specify which symptoms are associated
with each of the disorder(s) and which
disorders, if any, are caused by or part
of the service-connected PTSD. If
certain symptomatology cannot be
disassociated from one disorder or
another, it should be specified. If a
diagnosis of post-traumatic stress
disorder is appropriate, the examiners
should specify the credible "stressors"
that caused the disorder and the evidence
upon which they relied to establish the
existence of the stressor(s). The
examiners are directed to the
verification of any stressors or
incidents of service pursuant to
paragraphs 2 and 3. They should also
describe which stressor(s) the veteran
reexperiences and how he reexperiences
them. The psychiatrists should describe
how the symptoms of post-traumatic stress
disorder affect his social and industrial
capacity. The psychiatrists should be
aware of any inconsistencies found, for
example, the alleged POW history and two
tours in Vietnam. The report of
examination should include a complete
rationale for all opinions expressed.
All necessary special studies or tests
including psychological testing and
evaluation such as the MMPI and the
Mississippi Scale for Combat-Related
Post-Traumatic Stress Disorder are to be
accomplished. The examiners should
assign a numerical code under the Global
Assessment of Functioning Scale (GAF).
It is imperative that the physicians
include a definition of the numerical
code assigned. Thurber v. Brown, No.
92-172 (U.S. Vet. App. May 14, 1993).
The diagnosis should be in accordance
with DSM-III-R. The entire claims folder
and a copy of this remand must be made
available to and reviewed by the
examiners prior to the examination.
6. The RO should review the examination
report and determine if it is adequate
for rating purposes and in compliance
with this Remand. If not, the report
should be returned for corrective action.
7. After the reports are provided by the
psychiatrists, the RO must formally
adjudicate service connection for all
other disorders found on examination.
Following completion of these actions and, if the decision
remains unfavorable, the veteran and representative should
be provided with a supplemental statement of the case and
afforded a reasonable period of time in which to respond.
Thereafter, in accordance with the current appellate
procedures, the case should be returned to the Board for
completion of appellate review.
No action is required of the veteran until further notice is
issued.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
(MEMBER TEMPORARILY ABSENT) JAN DONSBACH
JOAQUIN AGUAYO-PERELES
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 57 Fed.
Reg. 4126 (1992) (to be codified as 38 C.F.R. § 20.1100(b)).